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[2013] ZALCD 20
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Sithole and Others v NI-DA Transport (Pty) Ltd; Fakude and Others v NI-DA Transport (Pty) Ltd (D938/08; D795/09) [2013] ZALCD 20 (1 March 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
case
no: D938/08 & D795/09
In the matter between:
D938/08
MBEKENI
W SITHOLE
.....................................................................................
First
Applicant
JACOB
BERT KHANYE
..............................................................................
Second
Applicant
BHEKI
C MMOLA
............................................................................................
Third
Applicant
THULASIZWE
SIMON NGWENYA
...............................................................
Fourth
Applicant
and
NI-DA
TRANSPORT (PTY) LTD
...........................................................................
Respondent
D795/09
MBONISENI ANDRIES FAKUDE
.....................................................................
First
Applicant
EPHRAIM NDABAYAKHE CHONCO
.........................................................
Second
Applicant
THEMBA ZWANE
..........................
Third
Applicant And 98 others(as per the attached list)
And
NI-DA
TRANSPORT (PTY)LTD
............................................................................
Respondent
Heard
: 11 – 15 March 2013
Delivered
: March 2013
Summary: Automatically unfair dismissal alternatively unfair
dismissal. Parties consenting to the Court arbitrating in accordance
with Section 158(2)(b) Respondent accepting
onus
to
prove fairness of dismissals and duty to begin Failing to lead any
evidence to establish dismissals were fair-
Application
granted and applicants reinstated.
JUDGMENT
GUSH J
The applicants in both of these matters are erstwhile employees of
the respondent. The applicants were dismissed by the respondent
and
referred the disputes concerning the fairness of their dismissals to
the Bargaining Council for the Road Freight Industry
where the
disputes were unsuccessfully conciliated and certificates of outcome
issued by the CCMA.
As the applicants had averred that they had been automatically
unfairly dismissed, the disputes concerning their dismissal were
referred to this Court. The applications in respect of the
applicants in case numbers D938/08 and D795/09 were filed with the
court on 23 December 2008 and 29 October 2009 respectively.
Both applications were opposed by the respondent. In application
D795/09, the applicants applied for condonation for the late
filing
of the statement of claim which application was granted by consent
on 11 August 2010. On 29 October 2010, again by consent,
it was
ordered that both matters were to be heard “simultaneously”
and that the parties were to file a pre-trial
minute in respect of
both matters after the close of pleadings.
The parties duly conducted a pre-trial conference and prepared and
filed a consolidated pre-trial minute, whereafter the applications
were enrolled for trial.
During the course of the hearing, the parties handed in a list of
agreed applicants in respect of both matters. The list of agreed
applicants is attached to this judgment. It was agreed that these
applicants had been dismissed by the respondent. The applicants
in
case number D938/08 appear as numbers 1 to 4 on the “list of
agreed applicants” and the applicants in case number
D795/09
as numbers 1 to 102.
In case number D938/08, the four applicants were dismissed on 23
July 2008, 4 August 2008, 1 July 2008 and 28 August 2008
respectively.
The applicants averred that the dismissal was
substantively unfair in that they had been dismissed for allegedly
speeding in
circumstances where they denied speeding, “alternatively
if they had been speeding they had not been speeding to a degree
which justified their summary dismissal”.
1
The applicants in this matter however, further averred that the
respondent not only had not dismissed other drivers for similar
misconduct but had dismissed them (the applicants) because of their
involvement with their trade union and in attempting to persuade
the
respondent to recognise the trade union to which they belonged. The
applicants’ also averred that their dismissals
were
procedurally unfair in that they did not receive proper notice of
the disciplinary enquiry, the charges of misconduct were
too vague,
they were not afforded sufficient time to prepare and that they had
not been given a proper opportunity to challenge
the evidence.
The applicants’ claim that they had been automatically
unfairly dismissed was based on their averment that the respondent’s
reason for dismissing them was due to their membership of and
participation in the activities of their trade union including
attempts to persuade the respondent to recognise the union.
2
In case number D795/09, the first three applicants, numbers 1, 2 and
3 on the list of agreed applicants, had been dismissed in
virtually
identical circumstances to the applicants in case number D938/08.
They had been dismissed on 28 and 30 July 2008 respectively.
These
applicants challenged the fairness of their dismissals on the same
basis as the applicants in case number D938/08.
The remainder of the applicants under case number D795/09, viz 4
th
to 102
nd
applicants, had been dismissed allegedly for
participating in an unprotected strike. The 4
th
to 102
nd
applicants alleged that they had been dismissed on 4 September
2008 when they had attempted to return to work after being advised
of a court order obtained by the respondent interdicting and
restraining the applicants from engaging and continuing with an
unprotected strike and directing them
inter-alia
to return to
work.
The 4
th
to 102
nd
applicants averred in their
statement of case that their dismissals too were automatically
unfair.
The applicants averred that their dismissals were:
(a) Substantively unfair in that the respondent had dismissed them
because of their involvement in attempting to persuade the respondent
to recognise their union, that they had attempted returning to work
on 4 September 2008; and that they were not given an opportunity
to
properly defend themselves at the disciplinary enquiry which took
place on 5 September 2008;
(b) Procedurally unfair in that they had not received proper notice
of the disciplinary enquiry in that it had been served on their
union
representative late in the afternoon of 4 September; the charges of
misconduct were too vague; they had insufficient time
to prepare;
were not properly informed of their rights and were not given a
proper opportunity to challenge the respondent’s
evidence.
The applicants averred not only that they had attempted to return to
work on 4 September 2008 but that the respondent had not
permitted
them to return to work and further that they had attempted to attend
the disciplinary enquiry but that they were prevented
from doing so
and had been dismissed in their absence.
It was also common cause that the respondent had, on 4 September
2008, issued the 4
th
to 102
nd
applicants with
a notice to attend a disciplinary enquiry on 5 September 2008 at
08H00 and had allegedly dismissed the 4
th
to 102
nd
applicants following the enquiry that had taken place in their
absence.
The notice to attend a disciplinary enquiry reads as follows:
‘
NOTICE
TO ATTEND A DISCIPLINARY ENQUIRY
TO: GARS THAMI SAMUEL KHANYE AND
99 OTHER EMPLOYEES OF NI-DA TRANSPORT (PTY) LTD, WHOSE IDENTITIES ARE
SPECIFICALLY LISTED IN THE
NOTICE OF MOTION OF NI-DA TRANSPORT (PTY)
LTD TN CASE D637/08 IN THE LABOUR COURT OF SOUTH AFRICA HELD AT
DURBAN, herein represented
by THE SOUTH AFRICAN TRANSPORT AND ALLIED
WORKERS UNION
SUITE 11, 1
sT
FLOOR,
COMMERCIAL CENTRE, 19 VOORTREKKER STREET, NEWCASTLE
You are
hereby notified to attend a disciplinary enquiry on Friday, 5
September 2008 at 08:00 which will be held in the Board Room,
2
nd
Floor, DBM Building, 52 Scott Street, Newcastle to
answer to the following charges:
CHARGE 1
You are
guilty of misconduct in that on or during or about the period
1
September 2008 to 4 September 2008 you
engaged in or continued with an unprotected strike and refrained from
engaging in the strike
notwithstanding an order of the Labour Court
of South Africa, held at Durban in Case nr D637/08
AND KINDLY FURTHER TAKE NOTICE
that you have the right to be present and to be heard. You further
have the right to be represented
by a fellow employee of your choice
who shall have the right to cross-examine any person called as a
witness in support of the
charge, to peruse all documents provided or
submitted as evidence, to call persons as witnesses, and you shall
have the right to
give evidence yourself.
AND you are requested, to
acknowledge receipt hereof.
Your
failure to attend the disciplinary hearing, either in person or
through a fellow employee, shall in no way invalidate the proceedings
and the proceedings may be conducted in your absence.’
3
The respondent pleaded that at the conclusion of the enquiry the 4
th
to 102
nd
applicants in case number D795/09 were found
guilty of misconduct and dismissed as per the notice of outcome of
the disciplinary
enquiry as set out below:
‘
NOTICE
OF THE OUTCOME OF A DISCIPLINARY HEARING HELD AT THE OFFICES OF COSTS
DE JAGER BAQWA MARITZ INCORPORATED ON 5 SEPTEMBER 2008
In the matter between
NI-DA TRANSPORT (PTY) LTD
Employer
And
EMPLOYEES AS CONTAINED IN THE
NAMELIST ANNEX HERETO
MARKED ANNEXURE "A"
AND "B" Accused
Presiding Officer: Mr
Labuschagne
Prosecutor: Mr Coetzee
CHARGE NUMBER 1
KINDLY TAKE NOTICE
that
you, the accused persons, whose identities are specifically listed in
the name list attached hereto marked annexure "A"
and "B"
have been found guilty by the Presiding Officer of misconduct in that
you engaged in and/or continued with an
unprotected strike over the
period 1 September 2008 to 4 September 2008.
AND FURTHER
that you
continued with the unprotected strike as stipulated despite having
been ordered by the Labour Court of South Africa held
at Durban in
case number D367/08 to refrain from engaging in the strike.
SANCTION
The following aggravating
circumstances deposed to under oath be taken into account to arrive
at a suitable sanction: –
that you ignored the
ultimatum to return to work at 13H00 on 1
st
September 2008;
That your ignored the
ultimatum to return to work on 4
th
September 2008;
That you deliberately
disobeyed a Court Order granted on 4
th
September
2008 under case number D367/08 not to further participate or
engage in this unprotected strike after having
consented to
abide by the Order.
I therefore find that no other
suitable sanction than the following could be imposed:-
Dismissal with immediate effect
from the services of the employer of all employees listed in
annexure "A" and "B"
attached hereto.
THUS DONE
and
SIGNED
at
NEWCASTLE
on this the
5
th
day of
SEPTEMBER
2008.’
4
The respondent averred that the disciplinary enquiry had proceeded
in the absence of
the 4
th
to 102
nd
applicants on 5 September at 09H00 after having telephonically
contacted the applicants’ union representative, on the morning
of the enquiry, who had advised them that he was consulting with the
applicants and would be at the venue within 15 minutes.
The
respondent averred that the 4
th
to 102
nd
applicants had been dismissed on 5 September 2008 at the conclusion
of the enquiry.
At the commencement of the trial, the parties confirmed the contents
of the pre-trial minute which recorded the following:
under the heading "ISSUES THE COURT IS REQUIRED TO DECIDE"
1. Whether the dismissals of the applicants were procedurally and
substantively unfair; and/or
2. Whether the dismissals of the applicants were automatically unfair
in that they were motivated by discrimination on the basis
of the
applicant's involvement in union activity and/or for the pro-union
and pro-employee activities.
5
under the heading "duty to begin and onus"
the respondent bears the overall onus of proving the fairness
of the dismissals;
the applicant will revert by 30 June 2011 regarding the
respondents submission that the applicants bear the onus
of
proving the discrimination;
the respondent will be required to prove, if necessary, that
the discrimination was fair;
the respondent has the duty to begin.
6
There was no suggestion by either party that any agreement had been
reached regarding the issue of discrimination and the matter
proceeded in accordance with the provisions of the pre-trial minute.
At the outset given the specific recordal by the parties of the
“issues the court [was] required to decide”, the
sequence in which these issues were set out in the pre-trial minute
and the agreement that the respondent was to begin and bore
the
onus
to prove the fairness of the dismissals, the parties confirmed that
the matter was to proceed in accordance with the pre-trial
minute.
In light of the fact that, in respect of certain of the applicants,
it could “become apparent that the dispute ought to
have been
referred to arbitration”, as provided for in section 158(2) of
the Act
7
,
both parties agreed that should this materialise it would be
expedient for the court to continue with the proceedings sitting
as
an arbitrator in respect of those applicants.
It was common cause between the parties that the respondent averred
inter alia
that the 4
th
to 102
nd
applicants
were dismissed as a result of their ‘participation in a strike
that [did] not comply with the provisions of Chapter
IV’
thereby entitling the applicants to refer the dispute to this
Court.
8
In accordance with the pre-trial minute, the respondent began.
It is important to record that the respondent, having agreed in the
pre-trial minute that ‘the
respondent bears the overall
onus of proving the fairness of the dismissals’
(my
emphasis), in order to discharge the
onus
, the respondent was
required to adduce sufficient evidence to prove the substantive and
procedural fairness of the dismissals.
In assessing the respondent’s evidence and having regard to
the fact that in so far as the respondent averred that the
dismissals were for misconduct and that they had conducted formal
disciplinary enquiries this matter was in effect a hearing
de
novo
. As will become obvious below, the nature extent and
contents of the evidence the respondent elected to adduce in
discharging
the
onus
, the evidence of the respondent’s
witnesses does not require that it be summarised in detail.
The first witness was Jacobus Lodewikus Maritz. Maritz testified
that he was employed by the respondent now as operations director
and at the time of the dismissals as the operations manager. He
explained that the respondent was a transport business engaged
in
the conveyance of general goods. The respondent was situated in
Newcastle and had branches in Gauteng and Durban. On 31 August
2008,
he had been contacted by one of the respondent’s drivers who
advised him that a group of drivers were preventing
the respondent
vehicles from leaving the respondent’s Newcastle premises.
Maritz had gone to the premises where he encountered between five
and 10 employees who were apparently the people who were preventing
the vehicles from leaving. He had approached the group and had
ascertained that the employees had various demands including
reinstatement of a number of drivers who had been dismissed. During
the course of the day the group had grown in number due as
he
described it ‘as drivers were forced to stay outside’.
Later that day, at 17H00, he had together with a Mr Danie
Wessels,
met with a number of the employees during which meeting the
employees had raised a number of demands namely:
reinstatement of the dismissed drivers;
bonuses to be paid directly into the drivers bank accounts;
suspension of disciplinary procedures;
non-compliance with the bargaining Council agreement in respect of
an alleged failure to register the drivers, pay the prescribed
minimum wage, remunerate in accordance with the agreement as
opposed to being paid per load, registration with an ABSA Provident
fund; and
a request for the deduction of union membership fees and various
other demands.
Maritz in his evidence suggested either that he was unaware of the
details regarding the issues raised or denied that there was
non-compliance by the respondent with the bargaining Council
agreement.
Maritz was under the impression it had been agreed that the drivers
would all return to work on Monday 1 September and that the
matter
would be further discussed. On Monday no one returned to work and
the respondent took steps to obtain the interdict (referred
to
above) which was granted on 4 September 2008.
Having obtained the interdict on Thursday 4 September, Maritz had
together with a Mr Coetzee "the lawyer" approached
the
employees at the gate and told them that an interdict had been
granted. Maritz’s evidence was as follows:
‘
When
the interdict came, Mr Coetzee accompanied myself and Danie to
outside the gate ... [intervention]
Sorry, could you just explain
who is Mr Coetzee?
He
was the lawyer at that stage that was handling the case on our
behalf, the situation.
...
You went to the gate with
Coetzee.
Ja,
and said that the interdict was granted and that they need to come to
work, the guys that want to work. That was repeated about
three or
four times. Mr ... [inaudible] and Edgar Mbina who was also standing
there translating in Zulu.
Mr Mbina being?
The
SATAWU representative.
Did Coetzee read the order
out? Ja, he did and then
...[inaudible] translated it.
Who translated it? Mbina,
Edgar Mbina. There was an ultimatum given to them a few times
to
return to work.
Together with the
interdict? Ja, that was
after the interdict, ja.
All right, and did anyone return
to work? Not one returned to
work, they were prevented.
They were prevented?
…
Ja,
they were prevented by the same group of Sunday.
Those were the 7 or 8 people who
were at the gate ... [inaudible]
J
a.’
As far as the four applicants in case number D938/08 and the first
three applicants in case number D795/09 were concerned, Maritz
was
barely able to confirm that they were dismissed but was unable to
give any detail regarding the charges of misconduct, other
than
suggesting that the misconduct was "over speeding" and
that he had been the initiator/prosecutor or interpreter
in these
matters. Maritz was unable to confirm the dates upon which the
applicants had been dismissed or to provide any detail
whatsoever
regarding the alleged misconduct that had lead to their dismissal.
He gave no evidence as to the extent of the supposed
“overspeeding”,
the date on which the misconduct was allegedly committed, the
evidence proving the misconduct, nor
the circumstances which led to
any of these dismissals.
Maritz, who apparently was ostensibly called to give evidence to
satisfy the requirements of section 192 of the Act namely to
"prove
that the dismissal was fair”, regarding the dismissal of the
applicants in case number D938/08 and the first
three applicants in
case number D795/09, was unable to provide any evidence to this
effect. Maritz’s evidence was littered
with vague
generalities. For example he was unsure of the dates upon which
these applicants were dismissed; had no knowledge
of the specific
circumstances regarding the misconduct and garnished his evidence
with spurious suggestions such the dismissed
applicants had had
"several warnings". He was clearly not in a position to
provide any specific evidence regarding
the misconduct the
applicants had committed which would have justified their dismissal
let alone to prove that the dismissals
were fair.
As far as the dismissal of the 4
th
to 102
nd
applicant's in case number D795/09 was concerned, Maritz took the
matter of the fairness of their dismissals no further. His
evidence
was simple. He did not identify the applicants who were present at
the gate of the premises, he simply described how
they had not
returned to work and he did not attend or give evidence at the
disciplinary enquiry that took place on 5 September.
Accordingly, he
was unable to give any evidence regarding what had transpired at the
enquiry and why the decision to dismiss
was fair. As regards the
enquiry in response to a question from Ms Oliver who represented the
respondent he said:
‘
Ms
Oliver: Now just a quick question with regards to the disciplinary
hearing, were you present? Is
that the big one?
Yes. No
I wasn’t.’
The respondent’s second witness was Mr Daniel De Wet Wessels.
Wessels testified that he is and was the financial director
of the
respondent at the time of the dismissals. Apart from his
responsibility for the finances of the company he dealt with
labour
and disciplinary enquiries. He had been advised by Maritz on 31
August 2008 of the situation at the depot in Newcastle
and had met
with the employees on that Sunday afternoon.
He confirmed that he had presided over the disciplinary enquiries of
the first four applicants in case number D938/08 viz. Sithole,
the
first applicant; Khanye the second applicant; Mmola the third
applicant and Ngwenya the fourth applicant. All four applicants
had
had been given a written “notice of charges”, been found
guilty of "over speeding”, and had been dismissed.
As with Maritz, Wessels gave no evidence as to when or where the
alleged misconduct took place or what evidence had been adduced
at
the disciplinary enquiries to prove the misconduct. In the case of
Mmola, he said he recalled that Mmola had also been charged
with
using a company vehicle for private purposes but gave no evidence as
to when and where. This type of misconduct, he explained
normally
involved going shopping off the route. Mmola had according to
Wessels admitted that he had used the vehicle to go to
his house and
that he sometimes went over the speed limit. Wessels however gave no
other detail regarding the misconduct or why
he had decided to
dismiss the applicants. In the case of Ngwenya, he said that he
thought that Ngwenya had also absconded from
work.
An example of the type of detail Wessels set out in his evidence is
the following:
‘
Ms
Oliver Yes, I apologise. Were you the presiding officer in the
hearing of Mr Fakude, Tshanke and Zwane [1
st
2
nd
and 3
rd
applicants in case number D795/09]? Yes,
I was.
Do you remember what they were
dismissed for? I must say,
it is quite a while back. I do
not recall every single dismissal.’
Wessels’ evidence was (despite his poor memory) that none of
these applicants had complained of any prejudice. He was able
to
confirm however that their dismissals had been referred to the
Bargaining Council for conciliation.
Regarding the dismissal of the 4
th
to 102
nd
applicants this is the evidence adduced by Wessels to prove the
fairness of the decision to dismiss:
‘
Now
after obtaining the interdict could you take us through what
happened? After obtaining the
interdict we informed the striking people that we had obtained the
interdict and we thereafter, again, asked them to return to
work.
When you say we, who are you
referring to? I, myself, was
there, Mr Maritz was there,
Mr Coetzee was there at that stage
when we asked them to return to work.
Was anyone else there? I
think Mr Labuschagne was present as well and, ja, the applicants.
You say he informed them of the
interdict, could you just take us through that, how was this
done? We
had a copy of the
interdict and, at that stage, I know Mr Coetzee explained to them in
detail the content of the interdict, and
explained to them that they
were to immediately return to work and that the strike was unlawful
and that they were to stop intimidating
the people and that they were
to stop damaging company property.
And did these employees return
to work? No, they did not
return to work.
Okay, just proceed with the
events of that afternoon. We
asked them to return to work,
so by 5.00 o’clock that afternoon
when the last ultimatum was there, they still hadn’t returned
to work. We then continued
...[intervention]
Sorry, can I just stop you
there. You say the last ultimatum, what are your referring to? Are
you referring to the letters, the
ultimatum to the
letters? Yes.
All right. We
asked them to return to work. I was actually outside with Mr Coetzee,
when
we for a final time asked them, please return to work, if you do
not return to work by that time then disciplinary steps will be
taken
against you.
And what was the time you are
referring to? The last
opportunity we gave them was for 5.00
in the evening.
Did any of the employees return
to work? No, none of them
returned to work.
Now it is common cause that a
disciplinary inquiry was held. That
is correct.
When was this disciplinary
inquiry to be held? I think
it was held on the 4
th
September.
Was it held on the day of
obtaining the interdict? I
think that that disciplinary inquiry
was held on the day after –
if I recall correctly – the day of interdict or the day after
obtaining the interdict.
Were you present at this
disciplinary inquiry? Yes, I
was present and this disciplinary
inquiry was held at the offices of
our attorneys, Mr Coetzee’s boardroom.
Were the applicants made aware
of this disciplinary inquiry? Yes,
they were made aware.
We actually gave the notice of the disciplinary
hearing to attend, was handed personally by Mr Coetzee to SATAWU to
Mr Mbina, and
furthermore, when the hearing commenced and none of
them was there to attend, we phoned Mr Mbina and he confirmed that he
know
about the meeting and they would be in 15 minutes and
...[intervention]
Sorry, when you referred to,
none of them were there – who were you referring to? None
of the applicants in the matter and SATAWU as well, nobody attended
the hearing.
Did you personally see this
notice given? Yes, I did.
Now you say no-one was there and
you contacted Mr Mbina. Who contacted Mr Mbina? Mr
Coetzee contacted Mr Mbina and asked him if they are still coming to
the hearing and – yes, so Mr Coetzee contacted him and
enquired
about it.
How was it that you know that Mr
Mbina was contacted? I was
present, he made a phone call
from their boardroom – I was
present when he phoned.
What was Mr Mbina’s
response? Mr Mbina said that
they would be there is 15 minutes.
How was it that you know what
his response was? It was on
a speaker phone when we spoke
to him on the phone, so I could hear
the whole conversation on both sides.
Was an explanation given for
non-appearance? No. He said
that he was still consulting with
the people and that they would be
there in 15 minutes.
Were they there in 15
minutes? No, they did not
arrive. They never arrived at the end.
Did the inquiry proceed? And
what I mean by that is did you lead evidence? Yes,
the inquiry
proceeded. From the company’s side I led the
evidence.
Did you lead the evidence or did
you give evidence? I gave
evidence.
Did anyone else give
evidence? No, nobody else
gave evidence.
And up to the state of the
conclusion of the inquiry, did anyone arrive on behalf of the
applicants, or any of the applicants? Nobody
arrived, other than myself.
Now what is the outcome of this
inquiry? The outcome of the
inquiry was that they were
found guilty of participating in an
unprotected strike and that they were dismissed as a result of it –
that is the applicants
.’
The Mr Labuschagne and Mr Coetzee, to Wessels referred in his
evidence, were the presiding officer and prosecutor respectively
at
the disciplinary enquiry that took place the following day, 5
September 2008.
For reasons which remain inexplicable, despite the fact that Wessels
was the only witness to give evidence at the disciplinary
enquiry he
did not see fit to disclose to the court what his evidence at the
enquiry was. In fact it is only from the Notice
of the Outcome of
the Disciplinary Enquiry and the dismissal letter (paragraphs 12 and
15 above) that is possible to discern
why the applicants were
dismissed. Wessels made no effort to explain the evidence he gave at
the enquiry in order to justify
the dismissals. His evidence was
simply a recounting of what had transpired leading up to the
disciplinary enquiry and the dismissal
of the applicants.
That concluded the respondent’s evidence. Despite the
provisions of the “code of Good Practice: Dismissal
9
the respondent’s witnesses did not deal with sanction at all.
The Code provides:
‘
Participation
in a strike that does not comply with the provisions of Chapter IV is
misconduct. However, like any other act of misconduct,
it does not
always deserve dismissal. The substantive fairness of dismissal in
these circumstances must be determined in the light
of the facts of
the case, including -
(a) The seriousness of the
contravention of this Act;
(b) Attempts made to comply with
this Act;
(c) Whether or not the strike
was in response to unjustified conduct by the employer.'
10
The respondent led no evidence regarding sanction at all let alone
make any attempt to explain why dismissal was the appropriate
sanction and what factors, aggravating or mitigating, the respondent
took into account before deciding to dismiss the 98 applicants.
It would appear that the respondent, despite what was in dispute,
simply ignored the implications of section 192 of the Labour
Relations Act that clearly stipulates the nature of the
onus
in
dismissal disputes. The section provides:
1. In any proceedings concerning any dismissal, the employee must
establish the existence of the dismissal.
2. If the existence of the dismissal is established, the employer
must prove that the dismissal is fair.
In this matter, the issue of the
onus
couldn't be clearer.
The dismissal of the applicants was not in dispute. The substantive
and procedural fairness of the dismissals
was. The pre-trial minute
entered into between the parties not only recorded that the Court
was required to decide whether the
dismissals were procedurally and
substantively fair but importantly records that the respondent
accepted and agreed that it bore
overall
onus
of proving the
fairness of the dismissals.
In order to do so it is trite that (as with an arbitration
concerning dismissal dispute) the enquiry into the fairness of the
dismissal entails a hearing
de novo
of the enquiry that led
to the dismissal in the first place. See
inter-alia
County
Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration and Others
11
Clearly in this matter the respondent simply ignored the
onus
and relied on general anecdotal evidence in a vain and misguided
attempt to discharge the
onus
of proving the fairness of the
dismissals. Not only did the respondent decline to present evidence
of the misconduct upon which
it relied during the disciplinary
enquiries in finding the applicants guilty of misconduct and the
basis upon which it decided
that dismissal was the appropriate
sanction, it disregarded the Code of Good Practice: Dismissals
referred to above.
Whether the dismissals were fair is dependeant upon the respondent
proving the facts and circumstances of the misconduct and
that it
followed a fair disciplinary process. These are issues which the
respondent is required to prove that it specifically
addressed at
the time of the dismissal... The respondents failed to adduce any
evidence that established that it had followed
a fair procedure but
also failed to prove the misconduct of the applicants. Neithjer of
the respondent’s witnesses addressed
the question of the
sanction of dismissal at all.
It is so that the applicants alleged not only that they were
unfairly dismissed they also alleged in the alternative that their
dismissal was automatically unfair for reasons relating to
discrimination. In the pre-trial minute it was agreed that this
issue was to be dealt with as follows:
the applicants will revert by 30 June 2011 regarding the
respondent’s submission that the applicants bear the
onus
of proving the discrimination;
the respondent will be required to prove, if necessary, that
the discrimination was fair;
There was no suggestion at any stage during the trial that the
applicants had reverted to the respondent on the issue of the
onus
of proving the discrimination. The respondent did not deem it
necessary to deal with the issue of discrimination in response
to
the applicants evidence and accordingly save for disputing that the
applicant’s were dismissed due to their union activity
led no
evidence to prove that any discrimination that may have been proved
was fair. I am satisfied, for the reasons set out
below that it is
unnecessary to deal with the applicant’s allegation that they
unfairly discriminated against.
In light of the failure of the respondent to prove the fairness of
the dismissals and considering the relief sought by the applicants
it is not necessary to summarise or analyse the evidence adduced by
the applicants.
The relief that the applicants sought was retrospective
reinstatement in the event that it was found that they had been
unfairly
dismissed. In those circumstances and as the applicants
were dismissed in 2008, retrospective reinstatement of the
applicants
carries with it substantial compensation, to the extent
that even had the applicants established that they were
automatically
unfairly dismissed or discriminated against by the
respondent that additional compensation would be warranted.
As the respondent neither submitted nor led any evidence to
establish that in the event of the applicants’ dismissal being
found to be unfair that reinstatement was not reasonably
practicable, the remedy to which the applicants are entitled is
reinstatement.
12
As far as the issue relating to the provisions of section 158(2) are
concerned the 4
th
to 102
nd
applicants’,
in case number D938/08, dismissal dispute was properly before the
court. Insofar as the dismissal of the applicants
in case number
D938/08 and the 1
st,
2
nd
and 3
rd
applicants in case number D795/09 are concerned in so far as it may
be that they should have referred their dispute to arbitration,
I
will deal with them in accordance with the provisions of section
158(2)(b) as agreed by the parties.
I am, for the reasons set out above, satisfied that the applicants
in both matters were both substantively and procedurally unfairly
dismissed.
Given that the applicants were dismissed in 2008 and as the
respondent have failed to prove that the dismissal was fair, in
accordance with section 193(2), I make the following order:
The dismissals by the respondent of the applicants in case numbers
D938 and 795/09 were both substantively and procedurally
unfair;
the respondent is ordered to reinstate the applicants in both
matters retrospectively to the date upon which they were dismissed;
the back pay due to the applicants is to be calculated in
accordance with the minimum wages as determined by the Bargaining
Council for the Road Freight Industry from time to time during the
period from the dismissal to the date on which they are
to report
for duty;
the applicants are to report for duty within 14 days of the date of
this judgment;
the respondent is ordered to pay the applicants costs in both case
numbers D938 and 795/09.
__________________
D H Gush
Judge
APPEARANCES:
FOR THE APPLICANTS: A Pillay
Instructed by PKX Attorneys
FOR THE RESPONDENT: Z Oliver
Instructed by F J Labuschagne Attorneys
1
Pleadings
page 7 para 16.2.
2
See
sections 4
and
187
of the
Labour Relations Act 66 of 1995
.
3
Applicants’
Bundle page 40
4
Respondents
bundle at pages 21 and 22.
5
Pre
trial minute para 5.
6
Pre
trial minute para 11
7
Labour
Relations Act 66 of 1995
8
Section
191(5)(b)(iii)
of the
Labour Relations Act; see
also pages 19 and 21
of the Bundle B.
9
Schedule
8 of the LRA.
10
Item
6(1).
11
(1999)
4 LLD 459 (LAC).
12
Section
193(2)
of the Act.